SUGRA Vs. PAWAN YADAV

JUDGEMENT

(1.) This is a claimants' appeal for enhancement of compensation awarded by M.A.C.T./Addl. District Judge (Court No. 7) vide award dated 6.3.2012 in M.A.C. Case No. 46 of 2010. whereby a sum of Rs. 2.68,500 alongwith pendente lite interest @ 6% per annum have been awarded on account of the death of Aaqil in the motor accident. It appears that on 21.1.2010 the deceased was coming to Bulandshahr from Firozpur in Maxi Truck No. U. P. 81A-9316 alongwith tomatoes and when his vehicle reached near Param Dairy on G.T. Road at about 11.30 p.m. truck No. HR 38G/2353 driving the vehicle rashly and negligently dashed with the aforesaid Maxi truck from behind and in the accident the deceased sustaining fatal injuries died on the spot. The report of the accident was lodged at P.S. Khurja Dehat and the autopsy on the cadaver of the deceased was conducted. The claimants being legal representatives of the deceased have preferred claim for Rs. 23.66 lacs. They contended that the deceased was earning Rs. 9,000 per month by selling vegetables and doing palledari. The driver and owner of the offending truck did not choose to contest the claim petition. However, the insurer of the offending truck filed written statement denying all the allegations of the claimants. The claimants have examined Shahbuddin P.W. 1 (father of the deceased) and Nizam P.W. 2 in support of their claim. They have also filed the photocopies of F.I.R., insurance cover note of offending truck No. HR 38G/2353, pollution certificate, tax receipts and certified copies of F.I.R., post-mortem examination report, site-plan, bail application, release order of the vehicle. The learned Tribunal after analysis of the evidence adduced by the parties has found that the accident had taken place due to rash and negligent driving of truck No. HR 38G/2353 by its driver and in the accident Aaqil suffered instantaneous death. Breach of policy of insurance of aforesaid truck could not be proved by the insurance company. The learned Tribunal further found that the claimants could not prove the alleged income of the deceased and thus has taken the monthly income of deceased to Rs. 3.000 and deducting 1/3rd therefrom for personal and living expenses of the deceased carved out the loss of dependancy of the claimants to Rs. 24.000 per annum and applying multiplier of '11' as per age of parents of the deceased as he was unmarried, awarded compensation of Rs. 2.64.000. A further sum of Rs. 4,500 for funeral expenses and loss of estate was also granted to the claimants. Aggrieved the claimants have come up in appeal for enhancement of compensation.

(2.) We have heard the learned counsel for the appellants and perused the impugned award.

(3.) Learned counsel for the appellants has vehemently argued that the learned Tribunal has erred in not accepting the alleged income of the deceased as Rs. 9,000 per month as it was well proved through oral evidence adduced by the claimants. It was further submitted that future prospects of the deceased have also not been considered by the Tribunal. He has placed reliance on the case of Santosh Devi v. National Insurance Company Ltd. and others, 2012 2 ACC 377, in support of his arguments. In this case an Hon'ble Division Bench of the Apex Court instead of referring the issue to the larger Bench, disagreed with the view taken by another Division Bench in Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009 2 TAC 677, has observed that future prospects to the extent of 30% should be added even for skilled, unskilled labourers like barber, blacksmith, cobbler, mason etc. for calculating compensation for their dependants irrespective of the age of the claimants or the deceased. The Hon'ble Court in this case has only considered the increase in the costs of living, but other factors like imponderables of life, for example the life expectancy of deceased or the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the. estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether remained untouched. All these aspects were taken care of by the Apex Court in the case of Sarla Verma . If a person is self-employed like the deceased in the present case doing palledari or selling vegetables is incapacitated for any reason in pursuing his vocation, then it cannot be said with certainty that his income would always increase. In our opinion, the future prospects of any persons would depend upon the facts and circumstances of each case and a foundation had to be laid by the claimants to show that in future the income of the deceased would certainly increase. We may further illustrate our point of view with an example - if a restaurant even having good brand name is continuing its business in flying colours on main road or high-way, and in case a long over-bridge is built on its front, then certainly its income would tremendously decrease because the persons using high-way would not like to return back after taking u-turn and enjoy meals there by covering long distance. In order to claim increase in the future income of the deceased for quantifying the amount of compensation in motor accident claim cases, the claimants are required to lay a foundation from the very beginning, so the other party may also be able to rebut their contention and prove by cogent and reliable evidence that the future prospects of the deceased were bright or he had any future plans to increase his or income of the family. The human life is full of uncertainties and we should not forget that nothing in this world is permanent. We have come across very large number of cases, in which the vocation of injured or the deceased was manipulated or concocted in order to get higher amount of compensation by the concerned claimants. Even the medical or disability reports of victims, bills/voucher/receipts pertaining to their medical treatment are fabricated to achieve the goal. The litigants resort to many such nefarious activities to have excessive and exorbitant award causing huge losses to the insurance companies in auto insurance, which ultimately is to be borne by the people at large because having such bitter experience the premium charged by the insurance companies are increasing almost every year. In the instant case the deceased was unmarried young man of 26 years and in very near future after marriage he was expected to settle in his own life and in that case he would not have contributed to the claimants in the same manner as he was doing prior to his marriage. The learned Tribunal has not taken care of this aspect in this case and has only deducted 1/3rd from his estimated annual income for his personal and living expanses. Thus, in the facts and circumstances of this case, the claimants would not be benefited with the case cited on their behalf.